Judge Caffey, of this court, in an opinion in Bowles v. EllCarr Co., Inc., D.C., 71 F. Supp. 482, has permitted the substitution, and answers some but not all of the objections now presented. On the other hand, Judge McLaughlin of the United States District Court in Hawaii, on January 29, 1947, in Porter v. Hirahari, D.C., 69 F. Supp. 441; Judge McColloch of the United States District Court of Oregon, on January 8, 1947, in Porter v. Ryan, D.C., 69 F. Supp. 446; and Judge DeVries of the California Municipal Court in Long Beach, on January 30, 1947, in Porter v. Wilson, have decided to the contrary. Section 780 seems to have been passed by Congress in response to the suggestion of the Supreme Court in United States ex rel. Bernardin v. Butterworth, 169 U.S. 600, 605, 18 S.Ct. 441, 42 L.Ed. 873, where a suit to compel the Commissioner of Patents to issue a patent was declared abated because of the death of the defendant Commissioner, the suggestion being that Congress should provide that in the case of suits against the heads of departments abating by death or resignation, it should be lawful for the successor in office to be brought into the case.
Since the Fleming v. Taylor decision, the Circuit Court of Appeals for this circuit, upon a case not directly in point, Porter v. Maule, 5 Cir., 160 F.2d 1, likewise not yet reported, indicated that suits of this nature were by persons who were merely holding agents for the passing of the fruit of the litigation to the government. On January 25, 1947, in Williams v. United States, D.C., 69 F. Supp. 447, there was a holding substantially the same as this court's holding in Fleming v. Taylor et al., and also a similar holding in Porter v. Hirahara, D.C., 69 F. Supp. 441, and Porter v. Ryan, D.C., 69 F. Supp. 446. Basically, it must be remembered that all of the powers asserted against the citizens' liberty rights in these War Powers Acts, both the First and Second, 50 U.S.C.A.Appendix, ยงยง 601 et seq., 631 et seq., were for the success of the war then imminent and in progress.
In Sec. 92(b), Title 50 U.S.C.A. Appendix will be found the authority that the Congress, in the Emergency Price Control Act, gave the President authority to transfer powers and functions of the Price Administrator to, and only to, "other government department or agency * * * having other functions relating to such commodity." In Porter v. Ryan, D.C. 1947, 69 F. Supp. 446, by Judge McCulloch, practically the same position was taken. He said: "The President is authorized to transfer any of the powers and functions conferred by this Act upon the Office of Price Administration with respect to a particular commodity, or commodities to any other department or agency of the Government having other functions relating to such commodity or commodities. * * * Sec. 201(b)."
In my opinion this specific limitation in the Emergency Price Control Act destroys what otherwise would be an effective argument for a contrary holding based upon the President's wide redistribution powers under the First War Powers Act. To the same general effect is the holding of District Judge McColloch, in Porter v. Ryan, D.C., 69 F. Supp. 446, wherein the Court denied a motion to substitute the Temporary Controls Administrator for the Price Administrator in these words: "This is a rent case and I am unable to understand how the President can bypass the Senate under a clause of the Price Control Act which reads: `* * * The President is authorized to transfer any of the powers and functions conferred by this Act upon the Office of Price Administration with respect to a particular commodity or commodities to any other department or agency of the Government having other functions relating to such commodity or commodities. * * *' Section 201(b)."